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In a contract of marriage, the L. of Pitferran being obliged to infeft the Lady, then his future spouse, in the land therein contained; and at the time of the said contract, some of the lands are standing under long tacks for many years, for small duties, which were set by her husband's father long before the said contract of marriage; after the death of her husband, and after she had remained many years in possession of the said tack-duty, she charges her son as heir to her husband contracter, upon that clause obligatory foresaid, anent the giving of a valiable infeftment to her, to warrant the said infeftment from the said tacks, seeing the same were an impediment to the avail and efficacy thereof. The Lords found, that the heir was not obliged to warrant from that tack, it being set before the infeftment, and the party not being obliged to warrant the lands from the same specifice; for the clause of giving a valiable infeftment was found might subsist with the preceding tack, especially the Lady receiving the duty many years after the husband's decease, and she being otherwise well provided of a conjunct-fee.
Act. Nicolson.Alt. Advocatus et Lermonth.Clerk, Hay.
Durie, p. 447.
